Dissertations / Theses on the topic 'Standard Contract Forms'

This thesis identifies a potential weakness in the Federal Government's policy in the area of Contract Administration relating to computer prepared forms and documents. In particular, the preparation of Contract Progress Payment Request (Standard Form 1443). It is the author's thesis that the Government, which gave us the 'Standard Form', should take a leadership role in developing the 'Standard Program', and that these programs be distributed to contractors free of charge in an effort to: 1. Establish and maintain program standards concerning content and documentation, and 2. Eliminate, to the maximum extent possible, mistakes in form preparation caused by math or logic errors. Keywords: Computer programs, Theses

The objective of this thesis is to consider whether the institutionalist hypothesis that the choice of organisational form functions to limit the transaction costs of organising productive activities explains a major standard-form contract which is used in building production. I approach this task by demarcating three models of contract which represent different points along a "contracting continuum". Each of the three governance structures - classical contract, relational contracting and the firm - represents a distinct patterning of resource co-ordination and each generates its own configuration of transaction costs. Thus the contracting continuum provides a basis for comparing the cost-reducing strengths and weaknesses of governance structures that vary with respect to their characterisation of relations between economic actors, and of the form and substance of both planning and implementation of decisions. The second part of the thesis focuses on the standardform building contract and its location along the contracting continuum. This part of the thesis addresses the question of "transactional fit" between the building contract and the activity which it purports to regulate. The analysis proceeds by identifying sources of transaction costs in the context and in the practices of building production and examining the governance implications of the contractual responses to such costs. 11 In its conclusions the thesis attempts to evaluate the contribution of institutional analysis our understanding of legal conceptions of contract. By using an industry-wide standard-form contract as a focus, I hope to illustrate some of the strengths and also the limitations of this approach. Building contracts have received little academic attention in the UK., and transaction cost analysis of governance structures is a young science which has been pursued with more enthusiasm by economists than by lawyers. As yet there has been little attempt to relate substantive aspects of the lawyer's understanding of contract to the "new institutional economics". It is hoped that this thesis will make a contribution to that exercise.

Thesis (M.A.)--City University of Hong Kong, 2006.
"Dissertation submitted as part requirement for the degree of Master of Arts in arbitration and dispute resolution of the School of Law of the City University of Hong Kong" Title from PDF t.p. (viewed on May 22, 2007) Includes bibliographical references.

The aim of this dissertation is to compare South African law on standard form contracts against the corresponding German law. Thus, the responses of both legal systems to the special situation occurring in cases of standard form contracts will be compared and evaluated. Thereby, the focus of this dissertation is to determine whether South African law on standard form contracts provides adequate protection for the submitting party. German law on standard form contracts provides the basis and outline against which South African law will be critically evaluated. German law was selected for this task, as it was one of the first legal systems, which enacted legislation, and addresses the issue systematically. It should be noted that this dissertation does not aim to evaluate German law on standard form contracts. In the first part of this dissertation I will provide a brief definition of the notion of freedom of contract and consumer protection. I will then proceed to highlight the relevance of standard form contracts in modern society and outline the problems associated with such contracts. This will be followed by a discussion of whether standard form contracts can be considered as classical contracts. In the second part of this dissertation I will outline the law on standard form contracts in both jurisdictions. Concerning the German law, I will give a brief overview of what the relevant provisions state. Concerning South African law, I will briefly illustrate what the relevant common law appears to be without going into far too much depth. Such outlines of the applicable laws are necessary in order to acquaint the reader with some of the important themes that this dissertation will discuss in detail. In part three the actual comparison and evaluation will follow. The comparison will include a detailed illustration of the law on standard form contracts in both jurisdictions. Thereby, some repetition in regard to the applicable law cannot be avoided. Thereafter, the evaluation will more specifically investigate whether South African law is effective in achieving its aims and whether South Africa should introduce legislation on standard form contract terms.

This research deals with an evaluation of the standard form procurement contracts in the South African Police Services ,which is a government department.
Dissertation (LLM)--University of Pretoria, 2019.
Private Law
LLM
Unrestricted

Les consommateurs disposent d’une rationalité limitée et sont sujets à divers biais cognitifs. La thèse étudie les conséquences des biais de rationalité sur le comportement des consommateurs ainsi que les implications sur la politique de consommation. Chacun des trois chapitres de la thèse est consacré à un biais particulier (surestimation de la qualité, erreurs d’anticipation de l’utilité, biais de projection) dans un contexte concurrentiel déterminé. Les deux premiers chapitres sont bâtis sur des modèles de duopole standards auxquels sont intégrés des biais de rationalité : le premier est un duopole avec différenciation horizontale inspiré de Dixit (1979), tandis que le second envisage un modèle de différenciation verticale adapté de Gabszewicz & Thisse (1979). Le troisième chapitre étend à trois périodes la modélisation du biais de projection proposée par Loewenstein et al. (2003). J’aboutis à la conclusions que, si les biais cognitifs conduisent dans certains cas à des choix sous-optimaux (chapitres 1 et 2), les consommateurs naïfs peuvent également être avantagés par rapport aux agents sophistiqués (chapitre 3). Ce constat plaide en faveur d’une intervention circonstanciée et mesurée sur le marché. Enfin, des recommandations de politiques économiques sont formulées: je prône une approche renouvelée du droit de la consommation, qui ne serait plus fondé principalement sur l’information du consommateur mais davantage sur des mesures de redressement cognitif. Des exemples de mesures concrètes sont discutés tout au long de la thèse
Consumers have bounded rationality and exhibit cognitive biases. The thesis studies the consequences of such biases on consumer choice and implications on consumer policy. Each chapter of the thesis investigates one specific bias (quality bias, utility misperception and projection bias) in a given market structure. The first two chapters focus on stan- dard duopoly models, in whichcognitive biases are incorporated: I build a horizontally differentiated duopoly based on Dixit (1979)in chapter 1, and a vertically differentiated duopoly inspired by Gabszewicz & Thisse (1979) in chapter 2. As for the third chapter, it extends to three periods, in a monopolistic framework, the projection bias model proposed by Loewenstein et al. (2003). I come to the conclusion that, while cognitive biases sometimes lead to suboptimal consumption decisions (chapters 1 and 2), naive consumers can be better off than their sophisticated counterparts(chapter 3). This observation pleads in favor of a non-systematic and context dependant legal intervention to counter cognitive errors. I argue in favor of a new approach of consumer policy, that would focus less on information disclosures in favor of debiasing schemes. Examples of such debiasing policies are discussed throughout the thesis

The purpose of this dissertation and the research contained therein was to discuss and investigate the influence of the CPA on concept of plain language in standard-form consumer contracts. In order to do so, it was important to discuss the historic background of the law of contract as well as the position where the CPA was not applicable. This refers to a position where common law principles determined the law of contract (including standardform contracts). One of the fundamental principles of common law is freedom of contract. Freedom of contract is a notion that parties are free to decide whether or not to contract, with whom to contract, the nature of the contract and the terms of the contract. Despite the fact that freedom of contract is deeply engrained in our legal system, does not erase the fact that when it comes to consumer contracts (in particular standard-form contract or contrat d adhésion) it is to the detriment of consumers. Under the principle of freedom of contract the assumption is that parties have equal bargaining powers which is, in fact, not always true. In light of the above, the South African legislature promulgate the Consumer Protection Act, Act 68 of 2008 which aims at improving the quality of information conferred to consumers by the sellers, to ensure consumers make informed decisions which are in line with their needs prior to contracting. Though the CPA changes the common law, it still makes provision to preserve common law. Section 2(10) of the CPA leaves no doubt that the common law is not replaced in its entirety by the Act for those matters that apply to it. The introduction of the CPA brought about changes to the South African consumer protection law. One of the changes is Section 22 which deals with plain language. A fundamental consumer right under the CPA, the consumer s right to disclosure and information (Part D) of the Act includes section 22 within its ambit and provides that consumers have the right to information in plain and understandable language. It is perceptible from this that the legislature envisions the plainness of language in contracts (including standard-form contracts) and other legal documents as means to redress imbalances between suppliers and consumers. While it is undeniable that the will now be additional burdens on being in business, everyone will benefit from the CPA. We are all consumers, after all.
Mini Dissertation (LLM)--University of Pretoria, 2015.
Mercantile Law
LLM
Unrestricted

Thesis (M.A.)--City University of Hong Kong, 2007.
Title from PDF t.p. (viewed on Sept. 7, 2007) "Master of Arts-arbitration and dispute resolution, dissertation" Includes bibliographical references.

The thesis covers the field of the contract law known as the consumer credit law. It deals with the legal protection afforded to the consumer under current South African law with emphasis on the legal position in specific credit agreements contained in standard-form contracts. The thesis focuses on those credit contracts in which the legal relationship between the consumer and the dominant party is contained in the standard-form contracts, specifically credit agreements relating to money lending transactions in which the credit grantor’s rights are secured either by means of mortgage agreement, a suretyship contract, or a deed of cession. In South Africa the right to equality and human dignity, as opposed to the classical theories of contract: pacta sunt servanda and the principle of freedom of contract, are supported by the Constitution of the Republic of South Africa Act 108 of 1996 which entrenched democratic values permeating all areas of the law including contract law. In this thesis the harmonisation of these classical theories of contract law and the constitutional values of human dignity and equality have been considered. As has been shown in a number of cases, notably those relating to the contracts of suretyship, cession in securitatem debiti, and mortgage, the current law regulating the relationship between the credit grantors and the credit receivers is in need of law reform to fall in line with the constitutional values of equality and human dignity. The greatest difficulty inherent in this area of the law is the reluctance of the courts to intervene at the instance of consumers. The courts would only intervene in the clearest of the cases, and would only do so in the public interest. In this thesis the current South African Law is considered in the light of the developments elsewhere. The tendency of credit providers to alter the terms of the contracts unilaterally and the growing number of conflicting decisions of the Provincial Divisions of High Court has also been considered. The writer also considers the role of the newly created Consumer Affairs Court.

Consensus and commercial terms: theoretical and comparative analysis This final thesis deals with the topic of the battle of the forms using the theoretical apparatus of rules governing the formation of contract. The problem is modeled (and therefore limited) for the case of formation of contract for the sale of goods concluded between merchants when each of them uses his/her own commercial (standard) terms. Another limitation of the thesis is connected with the use of classical contractual paradigm which is based on the continuity of offer and acceptance in the process of contracting. The key element of contract is found in consensus, therefore it is consensus which is analyzed in connection with extensiveness of terms, about which the minds have to meet in order to form the contract, and also in connection with the content of already formed contract. The final thesis has two objectives. First, it is to verify on theoretical level that no matter what principle in the process of formation of contract is used (whether mirror-image rule or not) both law professionals and legal theory are forced to find solutions which are in accordance with the principle of economic analysis of contract. Second, it is to analyze solutions on the formation and content of contract which were adopted by Czech...

碩士
國立臺北大學
資訊管理研究所
99
With the digital environment coming. Digital Content have gradually led to the virtual replacement of traditional Content. Digital Content keep of all the transactions on the Internet. For instance, a user who purchased the right of the legitimate use is granted to make deals online, which means he may sign a contract with a non-specific person. And a standard form contract is one of the contract templates. The study aims to improve the cost that is caused by a buyer and a seller when signing a contract and provide a convenient and fast negotiation mechanism. Both parties’ doubts about the contract can be resolved by consultations with each other. Through an appropriate contract template, both parties are able to make a choice and modify the contract’s content to meet the needs of both sides. This study intends to design an interactive process of authorizing distribution and offer a platform for both parties’ to negotiate on the authorization contract.

Contract for work in international construction projects (Summary) The present master thesis analyses the contemporary practice in the field of making contracts for work in international construction projects. Its goal is to answer the following research question: is it possible to use the new Czech trust concept as a payment instrument under the most used FIDIC standard form of contract - Conditions of Contract for Construction First Edition 1999 (better known as "Red Book")? The thesis is divided into three chapters, each of them dealing with different aspects of the new trust concept: from construction projects through construction contracts for work to payment conditions. The opening part of Chapter One focuses on construction projects. It defines their characteristic features and describes the main types of their management, organization and contractual relationships. Next, the chapter discusses the international character of construction projects and concentrates on situations involving a conflict of laws. Party autonomy and the choice of law rule, that empowers parties to designate the applicable law to their contractual relationship, are assumed to be fundamental principles of contract formation in international construction projects. This part of the chapter is concluded by the proposition that...

碩士
國立臺灣大學
法律學研究所
105
Standard form contract, which is common in modern society transaction, brings market advantage of mass contract and lower transaction cost, and effectively improves ecomomic efficiency and promotes economic development. However, because the process of making standard form contract lacks negotiation and exists severe gap of information between two parties, it will bring out an acute problem of abuses of freedom of contract to the weaker party. To achieve freedom of contract, procedural control of standard form contract is crucial and necessary. The emphasis is on the incorporation of standard form contract terms and how to ensure the weaker party has enough information to make the decision of making a contract or not. According to Article 11-1 of Consumer Protection Act, the stronger party shall provide a reasonable period for the weaker party to review all standard form contract terms, before entering into a standard form contract. Furthermore, where standard form contract terms in violation of reviewing period shall not constitute part of the contract. The core purpose of Article 11-1 is to ensure that the weaker party has the opportunity to understand terms, and Article 11-1 is part of procedural control. The theoretical basis of reviewing period is the obligation to provide information of the stronger party before entering into a standard contract. It is mostly based on problems of information asymmetry and principle of good faith. Also, the function of reviewing period is to give the weaker party time to understand information that is provided. As a matter of fact, it plays a vital role in making a contract. Since the theoretical basis of reviewing period is the obligation to provide information, not only consumer standard form contract but also non-consumer standard form contract can apply to reviewing period, because in non-consumer standard form contract, unfairness and inequity exist too. Moreover, in Civil Law, there are no procedural control of standard form contract. This implies that we should make application of reviewing period, Article 11-1 of Consumer Protection Act, by analogy to non-consumer standard form contract, but not to individually negotiated terms. On legal requirement of reviewing period, it should be provided unconditionally, disclosing all terms and other related documents and informing the right to review. What is more, it should mainly be provided to the weaker party and before entering into a standard form contract. In addition, the central competent authority may proclaim the appropriate contract reviewing period. However, there are problems like reviewing period proclaimed is not long enough, or inequity in different types of standard form contract. In violation of reviewing period, according to Article 11-1 of Consumer Protection Act, the terms shall not constitute part of the contract. However, it is not easy to claim in practice. The difficulties of the claim are mostly due to judicial opinions that confused procedural control with substantive controls. Based on the fact that reviewing period is a kind of procedural control, we should take the point of view of formal review. The emphasis is on that the weaker party have the opportunity to review, not actually reviewed or not. Thus, reviewing period system will become more effective. In addition, because that reviewing period is for the purpose of protecting the freedom of contract of the weaker party, and it is part of obligation to provide information. Then, in violation of reviewing period, the weaker party may be able to revoke the expression or claim for compensation for damages. The procedural control of standard form contract is crutial to procedural justice of contract, we should make reviewing period system more effective and efficient. Then we can essure the weaker party can make a standard form contract with the opportunity to access to information, and achieve the freedom of contract.

碩士
東吳大學
法律學系
99
Abstract The competition of the market of pharmaceuticals is extremely complicated, and as nothing is strange for various marketing tactics, including the bonus goods, allowance, donation, etc., and also many hospitals, utilizing “ Freedom of Contract ” principle on the market at present, require the pharmaceutical suppliers to reduce the price of pharmaceuticals according to certain proportion or amount of money and thus enabling the hospitals to enjoy the interests of the price difference of pharmaceuticals. Bureau of National Health Institute handling the sixth price volume survey on pharmaceuticals, have found that domestic pharmaceutical market exists various marketing activities produced to derive from sales throughout the tactics at the market in 2009. Through the price volume survey, Bureau of National Health Institute is difficult to obtain the real transaction materials of the market. Because of this, the pharmaceutical price information has been so insufficient that it would hinder to settle the whole reimbursement prices for pharmaceuticals and to control pharmaceuticals expenditure. In order to impel the pharmaceuticals market order to reach normalization and so to disclose transaction information, it is necessary for Bureau of National Health Institute to justify all of this. The transactions between hospitals and pharmaceutical suppliers are the behavior of the free trade of market. If not relevant regulations dully authorized, then Department of Health and Bureau of National Health Institute should be unable to get involved. Department of Health has drafted the law of National Health Insurance article 75, which regulates the medical institutes, on the trade of pharmaceuticals, should sign the standard form contract for pharmaceutical procurement with pharmaceutical suppliers. Both sides of transactions should obey the rules of the contract. Implementation of the standard form contract for pharmaceutical procurement will define specific contract content that hospitals sign with pharmaceutical suppliers and make the transactions of both sides can be fair, reasonable and clear. If so, not only can ensure both sides to have rights and interests, can also assist Bureau of National Health Institute to handle the pharmaceutical price volume survey correctly in the future. Meanwhile, Bureau of National Health Institute can acquire the complete pharmaceutical transaction materials, which make the adjustment of the pharmaceutical price corresponding to reality further, and then can control the price difference of pharmaceutical in the rational range. Key words: National Health Insurance, Pharmaceutical price difference, Pharmaceutical Benefit Scheme, Price Volume survey, Standard form Contract for the Pharmaceutical Procurement

碩士
國立臺北大學
法律學系一般生組
99
There are developed Industrial, commercial world, and service industry in the modern society of capitalism, each type of business transactions is more and more mature that makes the scale of transaction become broad and induces the consideration of the transaction to be massive, seeking efficiency and to reduce its costs. It is indispensable to enter into a contract in our daily life. Because of the standard form contract has the advantages of quickly and convenient to the transaction, all circles of life are fond of using it. Since the standard form contract is drafted by the party of another in advance, sometimes it may be unavoidable to give advantages to the former. In fact, the party who drafted the standard form contract is usually standing in a better position. In the other hand, the relative person of the contract is usually in an inferior position. This paper is going to explore the questions which might be induced by the terms in standard form contract. Besides, the credit card system is developed in our country, the credit card institutions are almost using the standard form contracts to deal with the applicants of credit cards. And the situations that the rights and interests of cardholders are violating by the term of the standard form contracts are always happening. This paper is going to discuss the terms in standard form credit card contracts which are easily to induce the disputations and to find the ways to balance the benefits of card issuers and consumers. The resources which is using in this paper are writings and books of scholars from our or foreign counties, master papers, periodical papers, judicial judgments, administrative orders, and the data of internet. And to assist with fore-mentioned resources, there are foreign legislations, judicial judgments to be the foundations of comparative laws. There are six chapters in this paper. Chapter One is the prolegomenon of the paper. Chapter Two is the summary of the credit card system, including the origin of the system and the introduction of each type of credit cards. And to refer to the laws of America and Japan. Finally, to illustrate the procedure of the credit card transactions and the legal relationship between the persons involved in it. Chapter Three is to make a description of the standard form contracts and the terms in it. Chapter Four is to introduce the relationships between standard form contracts and Civil Code, Consumer Protection law, and Fair Trade Act. Chapter Five is to discuss the appropriateness of the terms in standard form contracts which is deemed important and easily to induce disputes in our society. Chapter Six is to make a conclusion of the paper and give some suggestions. The terms in standard form credit card contracts which drafted by card issuers of our country are sometime not exactly ideal. This paper finds that it is only to use Civil Code, Consumer Protection law, and administrative standards to bind the standard form credit card contracts in our country and recommends we can refer to the regulations of America and Japan to make the special laws with a clear and definite ways to be followed in this field.

碩士
國立臺灣大學
法律學研究所
101
The Law of standard form contract has developed for 20 years. It is composed of Civil Code, Consumer Protection Law and Financial Consumer Protection Act. In addition, because of the diversity of the scope of banking business, people can deal with financial transaction such as bank deposit and investment. Therefore, the study analyses the explanation and application of Financial Consumer Protection Act regarding standard form contract, focusing on exemption clauses of banking standard form contract, in order to provide the people whom should be protected with complete protection. Especially on the operation of the practice, courts have different opinions between tranditional and invested banking standard form contrct. First, we discuss the regulation method on comparative law from the view of procedure and substance. Secondly, we review the protection subject of Consumer Protection Law and Financial Consumer Protection Act to recognize the relationship between both. Finally, on the side of procedural regulation, why Financial Consumer Protection Act do not provide procedural regulation but information duty and suitability ？On the side of substantive regulation, we use the principle of reseaonable allocation of risk to examine the effect of exemption clauses of banking standard form contract.

碩士
國立臺灣大學
法律學研究所
96
The evolution of the Internet and its huge impact has been widespread around the world. They have totally changed the existing life style of humankind. By virtue of electronic commerce, both consumers and business operators may obtain some benefits, such as the reduction of their transaction cost and the rapidity of information communication, etc. In addition, various innovative transaction models are also created therein, which better fulfill the principle of freedom of contract than real world. However, the innovation also brings some difficult situations while applying the existing legal rules to the virtual world. In the age of electronic commerce, in order to expand their market share, business operators take advantage of standard form contract to enter into contract with nonspecific and multiple parties more often. Accordingly, standard form contract becomes the typical transaction model when concluding a website contract. This thesis will focus on the legal issue of website standard form contract, since it contains procedural and substantive aspects regarding electronic transaction, and it may assist the competent authority in restructuring its regulating attitude toward the cyberspace. This thesis is divided into seven chapters: the first one is the introduction which explains the author’s motive and goal in writing this thesis, and illustrates the research approach and process. To increase the practicability of this thesis, it also collects some common terms of website standard form contract in daily life through the internet. Under the Second Chapter, the thesis introduces the history of the development of electronic commerce at the beginning, and analyzes the uniqueness of electronic commerce environment. Furthermore, the thesis also conducts the comparative studies which compare the legal system concerning the electronic commerce and website standard form contract in United Nations, European Union, United States and Asian countries with the one in Taiwan. In the Third Chapter, this thesis challenges the current attitude of the competent authority toward the regulation of standard form contract. In addition to putting more emphasis on the significance of freedom of contract and the efficiency of regulation, this thesis also clearly identifies the transaction intention of the parties in the standard form contract as the main criteria in distinguishing between consumers and business operators. As for the website standard form contract, since the internet technology itself can neither redeem the disadvantageous capacity of the consumer in acquiring information, nor effectively remove the risk of market failure, courts shall adopt moderate regulating criteria on a case-by-case basis depending on the differences in the process of contracting.. After confirming the necessity of regulating the website standard form contract, this thesis analyzes the procedural and substantive conscionability of a standard form contract from a theoretical perspective in the Forth and Fifth Chapter. As to the procedural matters, considering the global and transnational character of the internet transaction, users of the standard terms shall provide the version of contract terms with local languages where they have established service stations in order to improve the understanding of consumers. Since e-consumers could review the standard terms in the website for an unlimited period of time, the compulsory reviewing periods may no longer be required. Nevertheless, in order to protect consumers’ right to know, users shall put some hyper links such as “please download this contract terms” in conspicuous place of website page, or directly mail the relevant contract terms to the electronic mail box of the consumer. With regard to the substantive content of the contract, in addition to the principle of good faith, equality, reciprocity, and listed situations in legal wording, this thesis also takes into consideration the negotiating power of the parties, the nature of goods or services, reasonableness of the obligation undertaken by the parties, and the interest being infringed. Moreover, courts shall carefully observe the evolution of ongoing technology, and consider it as a substantial factor while making the final decision. The Sixth Chapter of this thesis focuses on the analysis regarding common website standard terms in daily virtual life. These include presumed acceptance of terms, protection of children, Internet account management, use of consumers’ private information, right of terms users to unilaterally modify or terminate the contract terms, infringement of consumers’ legal right, immunity of terms users’ liability, forum selection clause, and arbitration agreement. In sum, all of the website standard terms may be divided into two categories by their gravity of criticism. One category is that the terms do not materially violate the principle of good faith, equality and reciprocity, and the unconscionability of terms could be resolved by technology or other proper strategies. In such circumstances, this thesis acknowledges the effectiveness of contract terms while certain conditions are fulfilled. The other one is that the unconscionability to the consumers is critical, and it could not be resolved by any measures. Therefore, this thesis concludes such terms void without further consideration. The Seventh Chapter concludes the arguments and analysis in each capter. By reviewing relevant academic and practical application, the thesis anticipates that it may provide judges, standard terms users, and consumers with some reflections from different perspective, so as to pursue brand new fairness and justice in the era of electronic commerce.

碩士
國立臺北大學
不動產與城鄉環境學系
96
In the pre-sales housing exchange that was promise before their performance, in order to reduce transaction costs of contract negotiation, both seller and buyer in the pre-sales housing market often through the standard-form contracts to promote the cooperative result of property right exchange to achieve both sides mutually beneficial. But standard-form contracts for pre-sales housing was made by enterprises manager unilateral, maybe there are some unfair risk and responsibility were concealed in contracts. Mandatory and prohibitory provisions to be included in standard-form contracts for pre-sales housing is the administration regulatory instrument, which attempts to reduce transaction costs of contract negotiation, to induce supply of true or safety information, and to promote the both transaction parties to pay more attention to the important items within contracts. Even though there are related rules such as legislation, and administration control to model standard-form contracts for pre-sales housing. In court practice, it still exist many disputes, wasting litigation costs. Effective regulatory instruments can correct externalities arising from unfair and obscure information in standard-form contracts terms, while redundant administration intervention in the contract terms will increase transaction costs. Entitlements and burden of proof distribution are placed, while high enforcement costs will be hard to carry out. To improve the problems, in this paper, the development of standard-form contracts laws and standard-form contracts of pre-sales housing cases of Supreme Court and Taiwan High Court are introduced. And adopts an approach based on law and economics that incorporates the interdependence costs and “Learned Hand Rule” to discuss which regulatory density can reduce transaction costs and thus promote optimal exchange. Assumes the frame concerned with rules for protecting and regulating entitlements and burden of proof distribution to discuss regulations of entitlements protection. This paper shows that, it’s a trend that government control to model standard-form contracts for pre-sales housing is gradually strong. Litigant’s disputes are focused on advertisements, the measure of area, and pay for breaking a contract. Different regulatory densities provide more efficient incentives for minimizing the social costs of transaction than the same regulatory density. And the regulations of entitlements protection existing must not can minimize transaction costs. In order to lower transaction costs, this paper suggests that the regulatory instrument of mandatory and prohibitory provisions should be enforced through the operation of different regulatory densities, which are private terms, default rules and immutable rules that are related to different characteristics of mandatory and prohibitory provisions to be included in standard-form contracts for pre-sales housing. Items No.5 and No.19 that should be printed on the standard-form contracts for pre-sales housing should be in enhancing entitlements protection direction. And think up a method to lower negotiation costs when Condominium Management Ordinance §33 about agreed private use is applied to. While this law adopts liability rules, it should improve higher court enforcing costs problem.

碩士
東吳大學
法律學系
101
The pharmaceutical expenditures claimed by medical institutions increase every year since the beginning of NHI (National Health Insurance). According to article 62 of National Health Insurance Act, hospitals must provide actual transactions data on pharmaceutical costs to BNHI (Bureau of National Health Insurance) as references in order for BNHI to proceed for pharmaceutical price adjustments. However, it has been reported that certain pharmaceutical suppliers and hospitals deliberately hid benefits such as discounts, free goods, donations, research funds, drug management fees, etc. that are relate to pharmaceutical transactions from reporting. These benefits may present as a separate event which makes it difficult to connect with drug purchasing. Certain hospitals purchase pharmaceutics at prices lower than NHI prices due to their superior bargaining power over suppliers but the reimbursement they get from Bureau of National Health Insurance is at prices approved by the Bureau, which creates so called “drug price black hole”. The phantom phenomenon of high percentage drug fee in total NHI expenditure is thus formed because there is no effective way to control the difference between NHI reimbursement prices and actual hospital purchasing prices. For years, the argument on differences between reimbursement price and actual purchasing price continues. Hospitals obviously are motivated to keep the benefits as much as possible because it presents a big profit for them. On the other hand, BNHI is also motivated to minimize or eliminate this portion in order to reduce its costs. To rationalize drug price, maintain market competition and order, and make trading more fairs, reasonable, transparent, and restrain improper price difference, BNHI conducts PVS (price volume survey) and the following price adjustments according to “National Health Insurance drug price guideline” and “National Health Insurance reimbursement price adjustment operation rules” since 1999. BNHI also promotes second generation NHI and the revised NHI Act was approved in Legislative Yuan on January 4, 2011 adding an article that requires medical institutions which claim reimbursement over certain amount must sign Contracts with suppliers when purchasing pharmaceuticals. The Contract should include penalties and list relevant rights and obligations, and prohibit illegitimate transaction behaviors. Thus the terms and prices of drug transactions would be transparent so that order, fairness, and quality of drugs can all be maintained. Any legal system has its objectives to be regulated and the expected effects after its implementation. Except the personal improper behaviors aforementioned, there is also pharmaceutical reimbursement policy issue that causes “drug price difference”. Therefore, it is planned to divide our discussions and analysis into three prospects in this article. Afterwards, the quality and limits of mandatory items and prohibitive items in the National Health Insurance Act that had been announced by Bureau of National Health Insurance will be discussed. Then review and discuss the terms on the “National Health Insurance Standard Form Contract template on the pharmaceutical trading” one by one which was jointly announced by DOH (Department of Health), Executive Yuan and FTC (Fair Trade Commission), Executive Yuan as the reference for future amendment in order to make sure the autonomy of private law, justice of contract, and balance of power.

碩士
國立交通大學
管理學院科技法律學程
99
The evolution of the internet has been widespread around the world, and the electronic commerce brings a whole new consumption vision to all mankind. At this age, we have to open our mind to accept any kind of novel business models, and review or amend, if necessary, our existing rules and regulations at the same time. The cooling-off period is a period of time during which the purchaser shall have the right to return the goods for a refund, and cancel the agreement without penalty. People who ever have the on-line shopping experience will be acquainted with it very well. However, the cooling-off period provided in the Consumer Protection Act(“Act”) is initially for the traditional mail-or-telephone order sales, and here comes a question with the rapid development of electronic commerce: is the existing regulation related to the cooling-off period enough or proper for all kinds of transactions via internet, especially for the digital goods and the on-line service? Comparing to physical goods or service in the traditional transactions, digital goods and on-line service are only transmitted and provided via internet. Furthermore, the digital goods can be reproduced efficiently and completely at very low cost, so the purchaser can claim a refund during the cooling-off period and easily keep a back-up copy as well. It also happens to the on-line service that the purchaser can ask a refund according to the cooling-off period regulation even though he/she has accepted the service non-returnable before the cancellation of the agreement. In such event, the purchaser will obtain both of the refund and the digital goods or the interest of the service at the same time, and this unfair situation obviously is not why we set up the cooling-off period in the Act. Maybe it is the time when we need to re-consider if the existing regulation related to the cooling-off period has its limitation, or it is applicable for all kinds of on-lime shopping transactions. The on-line game industry grows very fast in the recent years and has built up many different kinds of business models, including the software licensing, the on-line service and the virtual property purchasing either via internet or through the physical stores such as the convenient store. In addition, its administrative authority, Industrial Development Bureau of Ministry of Electronic Affairs, has announced the official standard form contract for the on-line game industry to protect the consumer rights and prevent disputes arising out of the game. According to such official standard form contract, no matter in which business models, the consumer has the rights to return the goods to or cancel the agreement with on-line game company for a refund without any cause within 7 days after the purchase or the start of the game. Nevertheless, after the cancellation, the consumer will get the refund and the entertainment interest of such agreement accepted before then. In order to prevent the non-fairness interferes with the development of the on-line game industry and all electronic commerce, this thesis, by reviewing the existing regulations and conducting a qualitative research to the on-line game industry, is trying to induct a new rule to balance the protection of consumer rights and the development of electronic commerce.

博士
國立成功大學
土木工程學系
104
The core of a construction contract is on the scope of work. In order to complete construction work, contractors have to consider cost and time first. In other words, the foundation of work completion is cost and schedule planning, which is also the essence of a construction contract. The research objectives of this study are: (1) Find out the controversies existed in court sentences, classify them into different types, and explore the connection among these types (standardized terms and conditions). (2) Examine the terms and conditions of standard form contracts and their fairness. This study not only checked whether the right and obligation are reciprocal in terms of form, but also substantially inspected whether different types of standardized terms and conditions are reasonable and fair from the viewpoints of construction cost and schedule planning. Taking the formation of construction cost and schedule planning as the foundation, this study argues that the meanings of cost and progress of a construction contract are not only limited to the freedom of bidding and signing of a construction contract, but emphasize substantial fairness and justice. This study searched court sentences of 68 cases relating to standard form contracts of construction projects, and proposed reasonable explanation for five types of standardized conditions. As observed from the results of these lawsuits, the court is not constrained by the terms and conditions of standard form contracts, and thinks that as long as the principles of fairness and justice are violated, the court will judge that the terms and conditions of the contract are invalid.

One of the reasons why the Consumer Protection Act 68 of 2008 (CPA) was enacted, was to protect consumers against suppliers who enforced onerous terms and conditions to the disadvantage of the consumer. Exemption clauses are amongst such onerous terms and conditions and according to Part G of the CPA (sections 48-52), exemption clauses must not be drafted on terms that are unjust, unfair and unreasonable. As almost all consumer agreements are drafted unilaterally in the form of standard-form contracts, this research will focus on the history of standard-form contracts and exemption clauses; the advantages and disadvantages of using them, landmark cases in which exemption clauses in standard-form contracts were dealt with, the effect of exemption clauses in standard-form contracts in light of the CPA and the legal remedies that are available to the consumer in instances where the supplier does not comply with the provisions of the CPA. The research will focus on the criticisms that have been levelled against the CPA as well as recommendations on what the legislature can do to rectify some of the problems that have been associated with the CPA.
Mini-dissertation (LLM)--University of Pretoria, 2015.
tm2015
Private Law
LLM
Unrestricted

A research report submitted to the Faculty of Engineering and Built Environment, University of the Witwatersrand, Johannesburg, in partial fulfillment for the requirements for the degree of Master of Science in Building (Project Management in Construction) in the School of Construction Economics and Management at Wits University. Johannesburg, 2017.
In the public sector, the decision as to which form of construction contract to select, remains a challenging and difficult task for many clients of construction projects. Selecting the most appropriate form of construction contract is one of many important decisions that a client has to make in a project, and such a decision may lead to project success. The factors that influence clients to make selections of construction contracts are not clearly understood. There is a lack of distinction or structured guidelines as to how forms of construction contracts are to be selected or by what process; however there are consequences for selecting inappropriate forms of construction contracts. The aim of this study was to determine the factors that influence clients’ choice of forms of construction contracts when implementing construction projects. Through the use of qualitative research methodology, a case-study of the three metropolitan municipalities in the South African Province of Gauteng; namely, the City of Tshwane, the City of Johannesburg and Ekurhuleni Metropolitan Municipality was conducted. The study population consisted of built environment professionals (engineers, architects, project managers, programme managers, construction managers and investment managers). Data was collected through structured interviews with specific questions relating to how forms of construction contracts are selected, what factors influence such choices and who the key drivers of such contract selection decisions are. The results have shown that the leading factors, according to respondents, that influence clients to select the forms of construction contracts they use for their projects are the influence of their consultant and familiarity. The suitability of forms of construction contracts was the least factor. The study further demonstrates that the most commonly used form of construction contract in the three metropolitan municipalities is the General Conditions of Contract (GCC 2010/2015) and the key drivers of such decisions are consultants, who are seen as the experts. It is recommended that clients need to be more involved in all construction management processes and rely less on consultants. The outcome of this research will help the industry to best deal with the problem of random selection of forms of construction contracts without proper analysis.
MT 2018

The 1980 United Nations Convention on the International Sale of Goods, concluded under the auspices of UNCITRAL, creates a comprehensive statutory legal framework for international sales. Through the express incorporation of the principle of freedom of contract, the convention contains rules which the parties may freely adapt to the particular circumstances of their transaction, by filling any gaps that may arise with trade usages and other practices. In addition, the convention recognises the binding force of international trade usages in certain circumstances, in that it binds parties to usages which are so widely known and have acquired such regularity of observance in international trade as to justify an expectation that they will be observed in the particular transaction. Such acknowledgment of the changing patterns and norms of behaviour which characterise international trade law allows the CISG to be categorised as a major component of the modern lex mercatoria.
Constitutional International & Indigenous Law
LL.M.

In this thesis the position of parties under a fixed-term agreement under section 14 of the Consumer Protection Act 68 of 2008 is analysed critically. The purpose of this thesis is first to establish whether parties to a fixed-term agreement are better protected in terms of section 14 of the CPA when the consumer needs to terminate the contract based on the material failure to perform by the supplier, than under the common law. Second, this thesis explores whether the maximum duration of fixed-term agreements should be limited by statute. Various aspects affecting parties to these agreements, for instance the freedom to contract, pacta servanda sunt, and standard-form agreements, are considered. The South African position is then compared to the position in Singapore under the Consumer Protection (Fair Trading) Act, and to the United Kingdom under the Consumer Rights Act, to gain perspective and objectively evaluate the provisions of section 14 of the Consumer Protection Act 68 of 2008 to establish whether South Africa can benefit from lessons learnt from these jurisdictions. Finally, principle-based amendments to the provisions of the CPA are recommended to improve the position of the consumer under fixed-term agreements to effect best practice solutions and ensure adherence to the aims and purposes of the Consumer Protection Act 68 of 2008 and international guidelines. This thesis is based on the law as at 18 June 2020, found in sources available in South Africa, and Singaporean law available in the database of the National University of Singapore.
Hierdie proefskrif is ’n kritiese analise van die posisie van partye tot vastetermynkontrakte ingevolge artikel 14 van die Suid-Afrikaanse verbruikersbeskermingswetgewing, die Consumer Protection Act 68 van 2008 (CPA). Die doel van die analise is eerstens om vas te stel of partye tot ’n vastetermynkontrak ingevolge artikel 14 van die CPA beter beskerming geniet ingevolge die CPA wanneer die verbruiker die vastetermynkontrak moet beëindig weens die wesenlike wanprestasie deur die verskaffer, as ingevolge die gemenereg. Tweedens ondersoek die proefskrif of dit wenslik is dat die maksimum duur van vastetermynkontrakte deur wetgewing beperk word. Verskeie aspekte wat die posisie van partye tot vastetermynkontrakte beïnvloed word ondersoek, onder andere kontrakteervryheid, die leerstuk pacta servanda sunt en standaardkontrakte. Die Suid-Afrikaanse posisie word dan vergelyk met dié in Singapoer, ingevolge die Consumer Protection (Fair Trading) Act (CPFTA), en die Verenigde Koninkryk, ingevolge die Consumer Rights Act (CRA) om perspektief te kry op die studie, en ten einde die bepalings van artikel 14 objektief te oorweeg om vas te stel of Suid-Afrika kan kersopsteek by hierdie jurisdiksies. Laastens word voorstelle gemaak om die posisie van die verbruiker tot vastetermynkontrakte ingevolge die CPA te verbeter om beste gebruikspraktyke te implementeer, en te verseker dat die doelwitte van die CPA en internasionale verbruikersriglyne bereik word. Hierdie studie weerspieël die regsposisie soos op 18 Junie 2020 in bronne wat plaaslik beskikbaar is, asook in bronne aan my beskikbaar gestel deur die Nasionale Universiteit van Singapoer tydens ’n navorsingsbesoek daar.
Kule thesisi isimo sezinhlangano ezingaphansi kwesivumelwano sesikhathi esinqunyiwe, ngaphansi kwesigaba 14 koMthetho 68 ka 2008, uMthetho weZokuvikelwa koMthengi uhlaziywa ngendlela egxekayo. Inhloso yalolu cwaningo ukusungula ukuthi mhlawumbe lezi zinhlangano ezingaphansi kwesivumelwano sesikhathi esinqunyiwe sivikeleke kangcono ngaphansi kwesigaba 14 se-CPA uma kunesidingo sabathengi sokuqedwa kwesivumelwano esencike phezu kokwehluleka ukwenza umsebenzi waloyo ongumthumeli wempahla, okwehlukile emthethweni owejwayelekile. Okwesibili, le thesis iphenya ukuthi mhlawumbe isikhathi isikhathi esinde sesivumelwano sesikhathi esinqunyiwe kufanele sincishiswe ngokomthetho oshayiwe. Izinto ezahlukahlukene ezithinta lezi zivumelwano, njengesibonelo, inkululeko yokungena esivumelwaneni pacta servanda sunt, kanye nesivumelwano ezingaguquki, kuyizinto ezibhekwayo. Isimo seNingizimu Afrika siqhathaniswa nesimo sezwe laseSingapore ngaphansi koMthetho wezokuVikelwa kwabaThengi (Fair Trading), kanye nasezweni laseUnited Kingdom ngaphansi koMthetho owaMalungelo abaThengi, ukuthola umqondo kanye nokuhlola izimiso ngaphansi kwesigaba 14 soMthetho 68 ka 2008, uMthetho oVikela abaThengi ukuthola ukuthi ngabe iNingizimu Afrika kukhona ekuzuzile kwizifundo ezifundwe kulezi zakhiwo zemithetho. Okokugcina, izichibiyelo ezisuselwe kwimigomo mayelana nalokho okushiwo yi-CPA inconywe ukuthi yenze ngcono isimo sezinhlangano ezingaphansi kwezivumelwano zesikhathi esinqunyiwe ukuletha izisombululo ezingcono kanye nokuqinisekisa ukuthi kulandelwa izinhloso kanye nemisebenzi yoMthetho 68 ka 2008, okunguMthetho oVikela abaThengi kanye nemihlahlandlela yezizwe zomhlaba. Lolu cwaningo lususelwe phezu komthetho kusukela mhla zi 18 uNhlangulana 2020, luyatholakala emithonjeni yaseNingizimu Afrika, kanye nomthetho waseSingapore uyatholakala emthonjeni yedatha yaseNational University of Singapore.
Mercantile Law
LL. D.